Mischief

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Page 1 Wednesday, April 05, 2023

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2023 SCC OnLine Cal 223
In the High Court of Calcutta

(BEFORE SIDDHARTHA ROY CHOWDHURY, J.)
Ramkrit Jadav
Versus
Samir Kumar Das and Others
CRA 613 of 2017
Decided on February 2, 2023, [Hearing concluded on : 18th
January, 2023]
Advocates who appeared in this case :
For the Appellant : Mr. Ayan Bhattacharjee, Adv.
Mr. Prattoy Khan, Adv.
Mr. Suman Majumder, Adv.
For the Respondent : Mr. Swapan Kumar Mallick, Adv.
Mr. Sandip Kundu, Adv.
Ms. Sudeshna Das, Adv.
The Judgment of the Court was delivered by
SIDDHARTHA ROY CHOWDHURY, J.:— This appeal assails the
judgment passed by learned Sessions Judge, Hooghly on 26th July,
2016 in Criminal Appeal No. 13 of 2016 recording an order of acquittal
and thereby setting aside the judgment and order of conviction passed
by learned Judicial Magistrate, 3rd Court, Hooghly at Chinsurah on 17th
May, 2016 in case no. CR 128/2011 under Section 138 of the N.I. Act.
2. Briefly stated, Ramkrit Jadav entered into an agreement with
accused Samir Kumar Das to purchase a flat and paid a sum of Rs.
4,97,376/- towards consideration money. However, the proposed
vender failed to deliver possession of the same and agreed to refund
the amount received as part of consideration, in advance. Samir Kumar
Das paid a sum of Rs. 1,60,000/- by cash and issued a cheque of Rs.
3,37,376/- on 31st January, 2011 in favour of the complainant Ramkrit
Jadav. The cheque was drawn on Bank of India, Chinsurah Branch. The
drawee presented the cheque and it was not honoured by bank due to
insufficient fund. The drawee, thereafter, sent a legal notice through his
lawyer to the drawer of the cheque within the statutory period.
However, by giving the reply to the said notice the drawer of the
cheque, who stood trial as accused person, denied his liability of repay
any amount to the drawee complainant on the plea that though he
issued a cheque, but he made the payment by cash before presentation
of cheque.
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3. The trial of the case being C.R. 128 of 2013 commenced on 13th
June, 2014 when the accused person on being examined under Section
251 of the Code of Criminal Procedure, pleaded his innocence and
claimed to be tried. In this case the complainant adduced evidence as
P.W. 1 and he was the sole witness. The cheque in question was
admitted as Exhibit-1 while Return memo is admitted as Exhibit-2.
Notice was issued by the Complainant through his advocate, was
admitted as Exhibit-3. Reply to the said notice by the drawer of
cheque, received by the complainant was admitted as Exhibit-4.
4. Learned Trial Court after considering the evidence on record both
oral and documentary, was pleased to hold accused Samir Kumar Das
guilty of offence, punishable under Section 138 of the N.I. Act,
recorded an order of conviction and sentenced him to suffer
imprisonment till rising of the Court and directed the accused person to
pay a sum of Rs. 4,50,000/- towards fine, in default to suffer
imprisonment for six months, and on recovery of the fine amount a sum
of Rs. 4,40,000/- was directed to be given to the complainant. This
order of conviction was considered by learned Appellate Court in the
Criminal Appeal No. 13 of 2016 and the order passed by learned Trial
Court was reversed. Hence the appeal.
5. Assailing the impugned judgment Mr. Ayan \Bhattacharjee,
learned Counsel representing the appellant submits that learned
Appellate Court, to his wisdom did not find the notice Exhibit-3, as
sufficient as there was no express demand for the payment of the
cheque amount. According to learned Appellate Court notice Exhibit-3
sans demand of money, as laid down under Proviso (b) to Section 138
cannot be held to be sufficient to maintain the proceeding under
Section 138 of the N.I. Act and on that sole ground the order of
conviction was reversed.
6. Drawing my attention to Exhibit-4 Mr. Bhattacharjee submits that
the notice, Exhibit-3 conveyed a message to the drawer of the cheque
in no uncertain term about his obligation to pay the cheque amount. In
response to such notice, Exhibit-3, the drawer of the cheque sent a
reply to the complainant claiming inter alia, though the cheque was
issued to his client, the complainant dated 31st May, 2010 worth of Rs.
3,37,376/-, yet it was not presented to the bank within the stipulated
period of time. Thereafter, being requested by the complainant on 4th
January, 2011 the drawer of the cheque paid a sum of Rs. 3,37,376/- in
cash in presence of local respectables. The drawee of the cheque
committed breach of trust in not handing over the cheque issued by the
drawer, despite several reminders.
7. Mr. Ayan Bhattacharjee, learned Counsel for the appellant draws
my attention to the meaning of notice as it appears in Black's Law
Dictionary (Eighth Edition) as under:—
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“A person has notice of a fact or condition if that person (1) has

actual knowledge of it; (2) has received information about it; (3) has
reason to know about it; (4) knows about a related fact; or (5) is
considered as having been able to ascertain it by checking an official
filing or recording. [Cases : Constitutional Law 251.6, 309; Notice 1.
C.J.S. Constitutional Law §§ 968, 1154, 1165-1166, 1168-1169;
Notice §§ 2-3, 9.] 2. The condition of being so notified, whether or
not actual awareness exists <all propective buyers were on notice of
the judgment lien> Cf. KNOWLEDGE. 3. A written or printed
announcement <the notice of sale was posted on the courthouse
bulletin board>. [Cases : Sales 235; Vendor and Purchaser 225.
C.J.S. Sales § 233; Vendor and Purchaser §§486-487, 491.]”
8. ‘Demand’ according to Black's Law Dictionary is defined as the
assertion of legal or procedural right and the ‘demand letter’ denotes a
letter by which one party explains its legal position in a dispute and
requests the recipient to take some action or else risk being sued.
9. Notice denotes, according to Mr. Bhattacharjee, merely intimation
to the party concerned of a particular fact. It may take several forms. It
must be in writing and must intimate quite clearly the message it is
supposed to convey. A notice is to be judged in the light of well
recognized principle of interpretation. It must be construed not with a
desire to find faults in it, which would render it defective but it should
not be construed in hypercritical manner with pedagogic pendantism as
well, but it must be construed in a common sense way.
10. To buttress his point Mr. Bhattacharjee placed his reliance upon
the judgment of Hon'ble Supreme Court in the case of Parasramka
Commercial Company v. Union of India reported in (1969) 2 SCC 694,
and judgment of the Coordinate Bench of this Court pronounced in the
case of Barendra Kumar Bera v. Santanu @ Chottan Mukherjee reported
in (2009) 2 C Cr LR (Cal) 634. It is further contended by Mr.
Bhattacharjee that the object of Clause (b) of Proviso to Section 138 of
the N.I. Act is to give a chance to the drawer of the cheque to rectify
his omission and also protect an honest drawer. Service of notice of
demand in Clause (b) of the Proviso to Section 138 is the condition
precedent for filing a complaint under Section 138 of the N.I. Act.
Learned Appellate Court had no reason to take a pedantic view to
reverse the order of conviction which means refusal on the part of the
learned Appellate Court to protect the honest drawee of the cheque,
from being deprived of, what is due to him.
11. Refuting such contention Mr. Swapan Kumar Mallik, learned
Counsel representing the opposite party submits that a notice
according to Clause (b) of Proviso to Section 138 of the N.I. Act must
contain, apart from information regarding return of the cheque as
unpaid, a demand for payment of amount of the cheque. It is
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mandatory and in absence of such demand of the cheque amount, the

notice is liable to be held as imperfect. To buttress his issue Mr. Mallik
relied upon the judgment in Rahul Builders v. Arihant Fertilizers &
Chemicals reported in (2008) 2 SCC 321. It is further contended that
parties to the proceeding entered into an agreement regarding refund
of sum of Rs. 4,97,376/-. In case of breach of such agreement the
accused respondent may be roped in a civil proceeding but he cannot
be saddled with criminal liability.
12. Since the ultimate issue, Court is to address, is the issue
relating to validity of notice, Exhibit-3 which is pore-condition to
maintain a proceeding under Section 138 of the N.I. Act. I have
perused notice Exhibit-3 which carries with it the information that a
cheque that was drawn on UCO Bank by the accused person, was
presented and dishonoured for want of sufficient fund. The complainant
being the holder of the cheque through his advocate sent a notice well
within time to the drawer, subsequently arrayed as accused person,
disclosing all necessary details but instead of demanding the cheque
amount simplicitor, opinion of the drawer of the cheque was invited in
writing, within a specific period of time, failing which, it is made out in
the notice, the drawer would expose himself to legal proceeding before
the Court of law.
13. Notice was duly received by the accused person and a reply was
given as well.
14. It goes without saying that service of notice in a proceeding
under Section 138 of the N.I. Act is imperative in character. It is a
condition precedent for maintaining a complaint under Section 138 of
the N.I. Act. Clause (b) of Proviso appended to Section 138 of the Act is
explicit enough that unless a notice is given in writing within 15 days of
receipt of information from bank regarding return of cheque as unpaid,
coupled with demand the petition of complaint would not have been
maintainable. It is trite to say no form of notice is prescribed.
15. Here in this case notice Exhibit 3 was served upon the drawer of
the cheque after the cheque was dishonoured by the bank. The notice
contains the required information indicating that (i) the cheque was
issued, (ii) amount of cheque, (iii) it was presented to the bank and
(iv) it was dishonoured for insufficient fund. Within 15 days thereof a
notice was given and there was no explicit demand for the payment of
cheque amount. Instead of demanding the cheque amount in clear
terms, learned Advocate representing the drawee requested the drawer
to give his opinion over the incident within 15 days failing which, he
would expose to legal consequences, a threat to sue was given.
16. The question that calls for consideration is whether the language
used in purported notice of the case, Exhibit 3, is indicating the
intention of the drawee to demand the cheque amount or not.
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Therefore, the only question remains to be examined is whether there

was a demand for payment.
17. In this regard we can rely upon the judgment of Hon'ble
Supreme Court pronounced in the case of Central Bank of India v.
Saxon Farms reported in (1999) 8 SCC 221, Mr. Bhattacharya submits
in the said case instead of explicit demand it was written that “Kindly
arrange to make the payment to avoid the unpleasant action of my
client” and Hon'ble Supreme Court was pleased to hold after perusal of
the said notice that it was a clear demand to satisfy the requirement of
proviso B appended to Section 138.
18. The object of issuing a notice indicating the factum of dishonour
of cheque is to give the honest drawer of the cheque to rectify his fault
by making payment within 15 days so that the holder of the cheque
need not have to initiate any criminal action despite the fact that
cheque was dishonoured. The notice does not require any prescribe
form. In RAJNEEH AGGARWAL v. AMIT J. BHALLA reported in (2001) 1
SCC 631 Hon'ble Supreme Court held:—
“Bearing in mind the object of issuance of such notice, it must be
held that the notices cannot be construed in a narrow technical way
without examining the substance of the matter.”
19. Section 138 of the N.I. Act has created a contractual breach as
an offence and the legislative purpose is to promote the efficacy of
banking and to ensure that in commercial or contractual transactions,
cheques are not dishonoured and credibility in transacting business
through cheque is maintained. In KANWAR SINGH v. DELHI
ADMINISTRATION reported in (1965) 1 SCR 7 while construing Section
418(i) of the Delhi Municipal Corporation Act Hon'ble Supreme Court
held:—
“It is the duty of the court in construing a statute to give effect to
the intention of the legislature. If, therefore, giving a literal meaning
to a word used by the draftsman, particularly in a penal statute,
would defeat the object of the legislature, which is to suppress a
mischief, the court can depart from the dictionary meaning or even
the popular meaning of the word and instead give it a meaning
which will ‘advance the remedy and suppress the mischief.”
20. Hon'ble Apex Court in Swantraj v. State of Maharashtra reported
in (1975) 3 SCC 322 held that:
“Every legislation is a social document and judicial construction
seeks to decipher the statutory mission, language permitting,
making the one from the rule I Heydons case of suppressing the evil
and advancing the remedy. Court held that what must tilt the
balance is the purpose of the statute, its potential frustration and
judicial avoidance of the mischief by a construction whereby the
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means of licensing meet the ends of ensuring pure and potent

remedies for the people. Court observed that this liberty with
language is sanctified by great judges and textbooks. Maxwell
instructs as in these words:
There is no doubt that the office of the Judge is, to make such
construction as will suppress the mischief, and advance the remedy,
and to suppress all evasions for the continuance of the mischief. To
carry out effectively the object of a statute, it must be so construed
as to defeat all attempts to do, or avoid doing, to an indirect or
circuitous manner that which it has prohibited or enjoyed : quando
aliquid prohibetur, prohibetur et omne pe quod devenitur ad illud.
The manner of construction has two aspects. One is that the
Courts, mindful of the mischief rule, will not be astute to narrow the
language of a statute so as to allow persons within its purview to
escape its net. The other is that the statute may be applied to the
substance rather than the mere form of transactions, thus defeating
any shifts and contrivances which parties may have devised in the
hope of thereby falling outside the Act. When the Courts find an
attempt at concealment, they will, in the words of Wilmot, C.J. brush
away the cobweb varnish, and shew the transactions in their true
light.”
21. In the case of NEPC MICON LIMITED v. MAGMA LEASING
LIMITED reported in (1999) 4 SCC 253 Hon'ble Apex Court relying upon
the decision pronounced in STATE OF TAMIL NADU v. M.K.
KANDASWAMI reported in (1975) 4 SCC 745 observed:—
“That in interpreting a penal provision which is also remedial in
nature, a construction that would defeat its purpose or have the
effect of obliterating it from the statute book should be eschewed
and that if more than one construction are possible the Court ought
to chose a construction that would preserve the workability and
efficacy of the statute rather than an interpretation that would
render the law Otis Sterile.
In the case of International Ore and Fertilizers (India) Pvt. Ltd. v.
Employees State Insurance Corporation (1987) 4 SCC 203 : AIR
1988 SC 79, this Court referred to often quoted passage from the
decision in the case of Seaford Court Estates ltd. v. Asher (1949) 2
All ER 155 wherein Lord Denning, L.J. observed : The English
language is not an instrument of mathematical precision. Our
literature would be much poorer if it were. This is where the
draftsmen of Acts of Parliament have often been unfairly criticized. A
Judge, believing himself to be fettered by the supposed rule that he
must look to the language and nothing else, laments that the
draftsmen have not provided for this or that, or have been guilty of
some or other ambiguity. It would certainly save the judges trouble
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if the Acts of Parliament wee drafted with divine pre-science and

perfect clarity. In the absence of it, when a defect appears, a judge
cannot simply fold his hands and blame the draftsman. He must set
to work on the constructive task of finding the intention of
Parliament, and he must do this not only from the language of the
statute, but also from a consideration of the social conditions which
gave rise to it and of the mischief which it was passed to remedy,
and then he must supplement the written word so as to give force
and life to the intention of legislature. A judge should ask himself
the question how, if the makers of the Act had themselves come
across this ruck in the texture of it, they would have straightened it
out? He must then do so as they would have done. A judge must not
alter the material of which the Act is woven, but he can and should
iron out the creases.”
(Emphasis supplied)
22. In Harihar Banerji v. Ramsashi Roy reported in (1919) 21 Bom
LR 522 it was held that what that notice must have conveyed to an
ordinary reader is the key factor to decide its validity.
23. Here in this case upon receipt of the said notice the drawer of
the cheque, responded by giving a reply through his lawyer and the
said letter has been admitted as Exhibit-4.
24. In the said letter written under the instruction of the drawer it
was stated that cheque was issued on 19th March, 2010 dated 31st
March, 2010 worth Rs. 3,37,376/- drawn on UCO Bank, Bandel Branch.
As the cheque was not presented within the stipulated period of time
on 4th January, 2011 the drawer of the cheque paid a sum of Rs.
3,37,376/- only in cash in presence of local respectables, reposing faith
upon the drawee that on the next morning he would come and hand
over the cheque no. 945741 along with receipt acknowledging the
payment he received in cash.
25. This response clearly shows that the drawer of the cheque
understood the purport of notice, he received. In reply he disowned not
only his liability to pay the cheque amount, he asserted that cheque
amount was paid in cash on 4th January, 2021.
26. Therefore, in my humble opinion, by seeking response from the
drawer in the purported notice the drawee actually wanted to draw the
attention of the drawer of the cheque to the fact that the cheque was
dishonoured and thereby to give an opportunity to him to rectify his
omission and to have the cheque amount being paid by the drawer.
There is a clear demand in the notice with a threat of legal proceeding.
27. The object of Section 138 of the N.I. Act is not only to protect
the honest drawer of the cheque but also to protect the innocent
drawee from being deprived of his otherwise legitimate claim. Keeping
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in mind that provision of Section 138 of N.I. Act is a penal provision

and remedial in nature as held by Hon'ble Apex Court in the case of
M.K. Kandaswami (supra) and it should be construed strictly, I am of
the view that the purported notice was sufficient to draw the attention
of the drawee to the fact that the cheque was issued for a specific sum,
it was presented to bank within the prescribed time limit, the
instrument was returned. Bank dishnounred the cheque for want of
sufficient fund in the account. By convening all these information the
drawee through his lawyer invited the drawer to react.
28. Clause (b) to Proviso appended to Section 138 of the N.I. Act
has the laudable object to give an opportunity to the drawer of the
cheque to rectify his mistake. Therefore, the drawer had option to
acknowledge the action on his part and to pay money or to deny his
obligation to pay. Here in this case the drawer took a plea of making
payment of the cheque amount prior to the date of notice, issued on
behalf of the drawee. This plea, however, was not taken before the
learned Trial Court. The accused being the drawer of the cheque had
the obligation to rebut the presumption of Section 139 of the N.I. Act
but he did not discharge his onus by adducing evidence. With the risk
of repetition, I would reiterate that the notice Exhibit-3 contains a clear
demand but in a soft and unconventional language which is in
conformity with the object of statute to provide an opportunity to the
drawer to rectify the mistake caused by omission on his part. Notice
Exhibit-3 is eloquent on demand of cheque amount and same was
realized by the accused person, the drawer of the cheque.
29. Learned Appellate Court in the impugned judgment held that
there was no clear, specific and unambiguous demand of payment of
dishonoured amount, made by the complainant through his learned
advocate.
30. It is rightly argued by Mr. Bhattacharya placing his reliance upon
the judgment of Privy Council pronounced in the case of Smt. Renula
Bose v. Rai Manmatha Nath Bose reported in AIR 1945 PC 108, that
statute does not indicate ‘clear’, ‘specific’ and ‘unambiguous’ demand
of payment of dishounored cheque. Learned Appellate Court had taken
the pains of rewriting a statute by importing the words like ‘clear’,
‘specific’ and ‘unambiguous’ demand which is contrary to all rules of
construction to read words into an act which are not there unless it is
absolutely necessary.
31. Learned Appellate Court committed error in taking a pedantic
view having found no word like ‘demand’ in the notice. The impugned
judgment passed by learned Appellate Court therefore, warrants
interference and in my humble opinion should be reversed and
judgment passed by learned Trial Court should be revived, which I
accordingly do.
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32. The respondent convict is directed to comply with the judgment

and order of learned Trial Court within four weeks from date in default
learned Trial Court will be at liberty to take steps according to law to
ensure compliance of the direction given in the judgment impugned.
33. Let a copy of this judgment be sent down along with lower Court
record to the learned Trial Court for information and necessary
compliance.
34. Urgent photostat certified copy of this judgment, if applied
therefor, should be made available to the parties upon compliance with
the requisite formalities.
———
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, April 05, 2023

2023 SCC OnLine Cal 223

In the High Court of Calcutta

“A person has notice of a fact or condition if that person (1) has

mandatory and in absence of such demand of the cheque amount, the

Therefore, the only question remains to be examined is whether there

means of licensing meet the ends of ensuring pure and potent

if the Acts of Parliament wee drafted with divine pre-science and

in mind that provision of Section 138 of N.I. Act is a penal provision

32. The respondent convict is directed to comply with the judgment

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